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Tribunal: Member Colin Edwardes

A delegate of the Minister for Immigration and Border Protection refused the applicant a Skilled visa. On 13 April 2018, the Administrative Appeals Tribunal set aside the decision.

The applicant was a citizen of South Africa who first arrived in Australia on 2 September 2013 on a Skilled Regional visa. On 2 November 2015, the applicant lodged an application for a second Skilled visa, which was refused by the delegate. This was the decision before the Tribunal for review. The applicant was convicted of two offences in South Africa. The first was culpable homicide during a motor vehicle accident, for which he was sentenced to 30 months imprisonment. The second was related to driving a motor vehicle while under the influence of alcohol, for which he was sentenced to a further six months imprisonment. After arriving in Australia he was also convicted of driving while above the legal blood alcohol limit. He never served any prison time.

During the hearing the applicant gave evidence about his first conviction. He explained that he was driving a car full of his friends when he swerved to avoid a collision and hit a concrete pillar. He was in a coma for two days and had no recollection of the incident. One friend in his car passed away during the accident and the applicant was convicted of culpable homicide for the death.

Under section 501 of the Migration Act 1958 (The Act) the Minister (or his delegate) may refuse a visa if the holder has a substantial criminal record. This is part of a character test. It was not in contest that the applicant failed the character test. The applicant was sentenced to multiple terms of imprisonment, which together amounted to well over 12 months. Therefore, he had a substantial criminal record within the meaning of section 501(7) of the Act.

A direction provided by the Minister of Home Affairs guides the Tribunal guides the Tribunal when reviewing decisions to refuse a visa. The ministerial direction provides certain factors the Tribunal must take into account when reviewing the decision. These factors are split into ‘primary’ and ‘other’ considerations. The ministerial direction requires the Tribunal to consider how the circumstances apply to each of the considerations, determining the amount of weight to be given to each and then balancing the considerations to come to a decision. Primary considerations should generally be given greater weight than the other considerations.[1]

The Tribunal found that the primary consideration of the protection of the Australian community weighed heavily in favour of the applicant not being refused the visa. The Tribunal came to this decision based on the circumstances of the first conviction and the fact the two drink driving offences occurred twenty years apart and he had decided to stop drinking since the latest offence. Further, the Tribunal found the risk the applicant posed to the Australian community was low due to the nature and seriousness of his conduct and the low likelihood of the applicant re-offending. The Tribunal found that the Australian community would accept the applicant as a productive member of the community based on the surrounding circumstances of the Applicant’s offences, his capacity to accept responsibility and the remorse that he had demonstrated.

The Tribunal concluded that, on balance, the considerations weighed in favour of not refusing the applicant’s visa. The Tribunal set aside the decision under review and in substitution decided the applicant should not be refused the visa under subsection 501(1) of the Act.

Read the full written decision on AustLii.

[1] Direction 65, paragraph 8(4).